Public Censure

Late this Summer, the Tennessee Supreme Court issued an opinion, over a dissent, that imposed a public censure against a lawyer for what were, pretty clearly, a series of failures on the part of the lawyer’s staff in the handling of a client’s matter. What makes the case, Garland v. BPR, interesting, and worthy of that dissent, is not the level of discipline imposed but the choice of the particular rules the lawyer was charged with violating. The things that make it interesting and dissent-worthy are also the things that make it potentially disturbing as precedent for lawyers and lawyers (like me) who defend lawyers.

Even though the case was clearly one in which the staff to whom the lawyer delegated tasks and responsibilities failed to do their job correctly, the Board did not charge the lawyer with a violation of the rule that is tailor-made for that situation, RPC 5.3.

RPC 5.3 requires the following of a lawyer in Garland’s position:

With respect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer;

(b) a lawyer having direct supervisory authority over a nonlawyer shall make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer; and

(c) a lawyer shall be responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:

(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the nonlawyer is employed, or has direct supervisory authority over the nonlawyer, and knows of the nonlawyer’s conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Instead of trying to build a case against Garland for any failures under RPC 5.3, the Board charged him with violations of RPC 1.3 and RPC 1.4, contending that he personally failed to act diligently in the client’s matter and failed to properly communicate directly with the client. The Board also charged Garland with what is often an add-on violation, RPC 8.4(a), but appears to have done so with an unusual twist — justifying it on the argument that the lawyer committed violations of the rules “through the acts of another,” where the “another” was a member of his own staff.

Justice Kirby, in her dissent, made the point that the rule that should have been the focus of the case was not:

The facts in this case center on the failure of Mr. Garland’s staff to response to [client’s] inquiries, the staff’s failure to make Mr. Garland aware of things that needed his attention, or staff members’ general incompetence in tasks such as filing and mailing.

Despite the fact that, “Rule 5.3 was tailor-made for situations such as the one presented in this case,” Justice Kirby trumpeted that the Board did not pursue any charge against Garland for a violation of that rule but instead leveled RPC 1.3 and 1.4 charges and explained her reluctance to adjudicate the disciplinary matter when the Court had “no findings on what measures Mr. Garland should have had in place to supervise his staff,” “no findings on what efforts Mr. Garland should have made to reasonably ensure that his staff’s conduct was appropriate,” and “no findings on whether Mr. Garland ordered or ratified his staff’s infractions, or whether he learned of them at a time when the consequences to [the client] could have been avoided or mitigated.”

Justice Kirby not only dissented from the ruling but also scolded the Board for not pursuing the case under the correct disciplinary rule — “I fault the Board primarily for the posture of this case. It is important for ethical charges against lawyers to be properly framed, so that the rules adopted to govern certain situations are applied to the intended situations.”

Justice Kirby’s admonition to the Board is important for at least two reasons. First, as she herself writes:

There are countless lawyers in Tennessee with law practices similar to Mr. Garland’s high-volume practice, in which many daily tasks and interactions with clients are delegated to nonlawyer staff. Delegating such tasks to nonlawyer employees does not
violate ethical rules, but failing to properly supervise nonlawyer employees does. It is important for practicing lawyers to understand what this Court expects from them in terms of supervising nonlawyer staff to whom mundane but important tasks are delegated.

Hopefully, and perhaps even more vitally, Justice Kirby’s admonition to the Board needs to have an impact because of the significant problems that could be created for lawyers if the Board is allowed to use RPC 8.4(a) to impose discipline in situations where RPC 5.3 would not support that outcome. In other words, Justice Kirby’s words — “Delegating tasks to nonlawyer employees does not violate ethical rules” — need to continue to be the law in Tennessee. If the Board is permitted to charge lawyers with infractions of RPC 8.4(a) on the basis that the failing of a staff member is the lawyer violating the rules through the “acts of another,” then RPC 5.3 essentially becomes surplusage in the rules altogether.

Awful things seem to be afoot today. So let’s talk about an awful thing.

Earlier this week I sort of criticized a federal judge in Mississippi for trying too hard to find something nice to say about a lawyer who was having to be disqualified for dropping a client like a hot potato when the Court called the lawyer’s actions in not delving too far into the new client’s case without first terminating the existing client relationship “commendable.”

That seemed overly generous to me, as I explained in that post about at tuber of elevated temperature here.

But perhaps it is all a matter of what sort of lawyer conduct you compare it to because if you compare that lawyer’s behavior to the behavior of the Tennessee lawyers necessitating this post, the Mississippi lawyer’s conduct does seem commendable.

Here is s link to the Shao v HCA order entered by a Tennessee circuit court judge in Nashville reprimanding lawyers for what is really, truly pretty vile litigation behavior. I’ll just pull from the opinion because Judge Brothers says it pretty succinctly (for context, the motions being referenced below are the plaintiff’s motion for default judgment, defendants’ motion for extension of time to file an answer, and defendants’ motion for extending time to respond to discovery):

These motions are unfortunately clouded by the untimely and unexpected death of Michael Geracioti, who was counsel of record for these defendants. Mr. Geracioti died in the early morning hourse of March 16, 2017, and one of his associates, Linda Natheson, advised counsel for plaintiff of his passing. On that same day, at 12:48 pm, counsel for plaintiff, Brian Cummings, sent an email to Ms. Nathenson expressing his condolences and alerting her to outstanding items due in several cases. Three hours and ten minutes later, at 3:38 pm, counsel for plaintiff filed the instant Motion for Default Judgment. Four days later, on March 20, 2017, plaintiff’s counsel, Brian Manookian, sent a letter to Ms. Nathenson threatening to assert a claim of $8,000,000.00 against her clients, her law firm, and the estate of Mr. Geracioti.

This Court is profoundly disappointed in the conduct of plaintiff’s counsel and the timing and manner in which the Motion for Default was presented. Being a zealous advocate does not mean that one abandons all sense of professionalism, courtesy and common decency. It is clear that counsel for plaintiff was attempting to gain a tactical advantage by aggressively pursuing the claim for default on the very day of Mr. Geracioti’s death; despite the fact that all parties had been actively engaged in pretrial proceedings and plaintiff’s counsel never complained after striking the original motion. Such behavior operates as an estoppel to the current claims of prejudice.

It is with regret that this Court must reprimand all of plaintiff’s counsel for conduct that is unbecoming members of the Bar and officers of the court. Hopefully counsel will apply this constructively and thereby avoid such reprehensible behavior in the future.

Hopefully.

I’ve written it before that a lot of jams lawyers get themselves are avoidable by trying to stick to the principal of Don’t.Be.An.Ass. This is another one of those situations and, as a reminder of how that rule is entirely reconcilable as Judge Brothers’ hints with being a zealous advocate, here are the words of Comment [1] to RPC 1.3 explains:

A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf. A lawyer is not bound, however, to press for every advantage that might be realized for a client.

Comment [3] to that same rule further explains:

A lawyer’s duty to act with reasonable promptness, however, does not preclude the lawyer from agreeing to a reasonable request for a postponement that will not prejudice the lawyer’s client.

Now, I understand that the litigation at issue appears from the caption to be a wrongful death lawsuit, and it is certainly possible that these lawyers’ client was the primary force pushing for these actions, but you would hope that most lawyers would have the ability to explain to a client pushing for such actions that the repercussions of an order such as this from the judge overseeing their suit is far more prejudicial to their case than simply not pursuing such tactics would have been.

About a week or so ago, I learned something new about South Carolina’s ethics rules – thanks to the law-student-powered blog of the University of Miami (FL) School of Law, Legal Ethics in Motion. They wrote about a South Carolina federal court case in which a motion to disqualify premised on South Carolina Rule 1.18 was denied. I learned a second new thing about South Carolina’s ethics rules in reading that opinion.

The first new thing I learned about South Carolina was that it has a weird-ish wrinkle in its Rule 1.18(a).

Most jurisdictions, including Tennessee, follow the lead of ABA Model Rules and have a version of Rule 1.18(a) that defines a “prospective client” as someone who “consults with” or “discusses with” a lawyer the “possibility of forming a client-lawyer relationship with respect to a matter.”

South Carolina, however, takes a different approach. Its RPC 1.18(a) reads as follows:

A person with whom a lawyer discusses the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client only when there is a reasonable expectation that the lawyer is likely to form a relationship.

Now, that “only when there is a reasonable expectation that the lawyer is likely to form a relationship” language can have some obvious benefits in avoiding having to deal with certain situations where most folks would agree that the array of protections afforded to a person as a prospective client under RPC 1.18 just shouldn’t come into existence. Like, if the only reason someone is reaching out is to get a lawyer disqualified – usually just dealt with through language in the Comment — this language should suffice to prevent RPC 1.18 protection from coming to pass. Likewise, if say a person a lawyer has never met before calls out of the blue and starts running on at the mouth about their case before the lawyer could get a word – like “stop” – in edgewise, this rule’s “reasonable expectation” and “likely to form” language would be a very good tool for shutting down any RPC 1.18 argument.

But, even having only just learned of the existence of such language, I was still surprised to then learn what the federal court in South Carolina thought it meant. Instead of resolving a disqualification motion on the basis that there didn’t seem to be any “significantly harmful” information that was ever transmitted, the court concluded that a series of events spanning a voice mail message, a telephone conference about a possible engagement, and an email exchange thereafter with a South Carolina lawyer was not sufficient to ever create the existence of a prospective client at all.

On July 7, 2016, Plaintiff’s attorney Jay Wolman (Wolman) called and left a voice mail for Wyche attorney Tally Parham Casey (Casey) about a possible engagement in a case. Wolman and Casey discussed the possibility of Wyche’s serving as local counsel for Plaintiff in this matter in a telephone conference on July 11, 2016. Wolman subsequently emailed Casey on July 11, 2016, and provided Plaintiff’s and Gari’s names “[f]or conflict purposes” and requested a fee agreement “[i]f there is no conflict.” Casey responded on that same day with applicable hourly rates and stated, “I hope we get the opportunity to work together.” On July 12, 2016, however, Casey sent Wolman an email stating, “I’m afraid we have a conflict and will not be able to assist you with this matter.”

Pardon the wordplay and all, but I’m not sure it is “likely” that a multitude of judges would agree with how that particular line was drawn on the RPC 1.18(a) front in this particular South Carolina decision.

While I am on the subject of South Carolina and its ethics rules, one other development is worthy of mention here. South Carolina’s Supreme Court has issued a public censure against an Arkansas lawyer for his role regarding using investigators to “pose as customers in an effort to obtain evidence to prove that the defendant was violating the intellectual property rights of the plaintiffs.” The Court explained that the Arkansas lawyer’s investigators “made false statements to the defendant’s employees and used tactics designed to prod the employees into making statements about the product,” and also “tape-recorded these conversations without notice to the employees.”

Many, many moons ago (2012), I wrote an article for an ABA publication called Landslide about the ethical problems for lawyers stemming from investigations relying on pretext in intellectual property matters. I don’t think I’m bragging when I say that billions of people never read that article. While it is probably a pretty safe bet to guess that this Arkansas lawyer was among the billions of people who didn’t read it, I can’t actually call that something I truly learned today because the conduct for which he is now being punished in 2017 with that public reprimand actually took place back in 2009.

Thus, if I’m flailing around trying to add one more thing to my list of nuggets learned today, it would have to be this, the South Carolina Court was actually a bit kind to this Arkansas lawyer in terms of how it described the problems. It pointed out, in issuing a public reprimand against the lawyer in question, that the lawyer was “unaware that secret tape-recording, pretexting, and dissembling were in violation of the South Carolina Rules of Professional Conduct.” Had it wanted to be a bit more damning in its explanation of events, it could have pointed out that the South Carolina rules upon which the discipline against the Arkansas lawyer rested (RPC 4.4(a) and RPC 8.4) say the same thing that Arkansas’s own version of those rules say and, thus, that it probably would not be a stretch to say that Arkansas’s ethics rules are also violated by (at least) pretexting and dissembling.

No, the title is not a veiled attempt to publicly-shame Maine’s Governor for his latest act of public ridiculousness… or is it? This is instead a short post discussing conduct that I posit is a lot more common than you might think and that resulted recently in a very low-level of discipline against a Maine attorney.

In the middle of December 2016, a criminal defense lawyer in Maine received an admonition for crossing the line when interviewing an unrepresented witness by providing legal advice in violation of Maine’s version of ABA Model Rule 4.3. Rule 4.3 governs a lawyer’s communications with someone who is not represented by counsel. That is the rule that, among other things, limits a lawyer’s advice to an unrepresented person. Many folks remember the rule as foreclosing any advice but the advice to “get a lawyer,” but the rule actually only prohibits other legal advice if there is a risk that the interests of the unrepresented person are in conflict with those of the lawyer’s client.

In the Maine matter, the defense lawyer communicated with the victim in a domestic violence assault case against his client. The short opinion regarding the admonition stresses that the fact of the communication itself, as well as several of the topics discussed, were perfectly appropriate since the victim was willing to talk with the defense lawyer. Where the Maine lawyer crossed the line was providing his opinion to her about whether “she could avoid testifying by invoking her Fifth Amendment rights against self-incrimination.” Because the victim had interests adverse to his client’s, the Maine attorney could only ethically respond to any questions about Fifth Amendment rights by telling her that she would need to get her own attorney to receive that kind of advice.

Even in less emotionally-charged circumstances than would be expected to be true in a domestic violence matter, navigating an interview of an unrepresented witness and complying with Rule 4.3 can be difficult. Not only do people often want to take advantage of having a lawyer’s ear to seek advice but often those same people have no idea that they are putting a lawyer in a jam by asking. Lawyers, being human beings, can struggle with how to be inoffensive in declining to answer what the witness may view as a simple question rather than an ethical land mine. The situation for the lawyer can be further complicated by having to work through whether or not the client’s interests and the witness’s interests are sufficiently aligned for the lawyer to be able to actually offer advice beyond “get a lawyer.”

For both of those reasons, I suspect that this kind of violation happens at a level of frequency that far exceeds the number of cases where you see discipline meted out. Often, there never comes any reason for anyone to ever complain. Often, anyone who might complain never knows the interaction took place. Sometimes, the person communicating with the lawyer ends up benefiting from getting the free legal advice.

The Maine admonition came about only because the district attorney prosecuting the domestic violence case filed the grievance; the opinion makes clear that the DA had spoken to the victim shortly before the Maine attorney interviewed the victim, the fact that he filed the complaint strongly implies that he likely talked to the victim again after the Maine attorney spoke with her.

2016 was a year marked with quite a number of unexpected (at least to me) developments. 2017 likely will have its share of unexpected events as well.

To wrap up the year, I wanted to use what little platform I have to pursue something that is both driven by blatant self-interest and is in the interests of the overall “good.” That something is to muse in hopefully a relatively pithy fashion on my general philosophy about why even lawyers need other lawyers.

I truly cannot remember if the way I tend to state this is in such a fashion that it is cribbed from one or more other lawyers or if it has something of an nearly-original genesis but whether it should be footnoted to avoid plagiarism or written freely without worry of attribution, I think it is compellingly accurate as a philosophy:

Lawyers need lawyers because lawyers are great at solving other people’s problems, but horrible at solving their own problems.

I’ve encountered quite a few excellent lawyers who, in aid of their own personal situations, have done and said things they would never do or say if they were acting on behalf of a client other than themselves and who, if you could stop them and pose to them what they were doing as a hypothetical act of a client of theirs, would not merely counsel a client other than themselves against such behavior but would likely woodshed any of their clients who were foolhardy enough to so act.

I suspect you can think of an example or two you have come across as well.

And, if the philosophical concept is true, and even excellent lawyers — lawyers who are great at solving other people’s problems — need lawyers., then the need for lawyers is even greater when the lawyer in question is not so great even at solving other people’s problems.

There are any number of ways that these thoughts could have been prompted today. For the record, they were prompted by this story.

(And, I am not the only one to have written such a piece in the past and you can find lots of such articles online and in paper format, but I have written in the past about the fact that lawyers can be surprised to find that they have coverage to be reimbursed for hiring attorneys to handle things other than malpractice cases under their malpractice policies. My piece in that oeuvre can be found here.)

Earlier this month, the U.S. Supreme Court issued an important opinion on judicial recusal, Williams v. Pennsylvania. It is the first instance in which the Court has applied the standard first announced in Caperton — that recusal is required when the risk of actual bias on the part of a judge is “too high to be constitutionally tolerable.” In Williams, the Court reached the conclusion that due process required recusal of a Pennsylvania Supreme Court Justice in a post-conviction matter where he had been the District Attorney who signed off on pursuit of the death penalty against the prisoner in the underlying murder case. Both the majority opinion, authored by Justice Kennedy, and at least Justice Thomas’s dissent, which stresses the point that the two cases are not the same case — one being a civil proceeding and the earlier one a completed criminal case, are worth a read. But, the Williams opinion not the primary issue involving judicial ethics that prompted me to write.

What did is the story of the Florida circuit court judge (in Broward County) who has now accepted a proposed public reprimand and agreed to deliver, in person, a written apology to a prosecutor for his conduct back in 2015. You can get access to the full charging document filed back in November 2015 against that judge here, and you can read a week-old story from The Sun Sentinel about the acceptance of the discipline here.

The Florida judge’s original misstep involved the sending of an email in March 2015 to one of the lawyers in the Broward County Public Defender’s office that read as follows:

Sam. fyi, see the Palm Beach Judge’s Order re downward departures generally, not regarding any particular cases … and hopefully, you can perfect your own motions for downward departure (when you believe appropriate) using the excellent research you’ve already begin [sic], and perhaps some of this Judge’s Order and perhaps the cases she relied upon as well, but in either case, maybe there is something of interest (generally) below.

That email also forwarded to that public defender an email the judge had sent about 30 minutes or so earlier to his staff attorney about how to use that order as a template for orders in this judge’s cases. The receiving public defender then shared the email with other attorneys in that office and one of them recognized that the contents also needed to be shared with the prosecutors.

That led to the filing of a motion by prosecutors seeking a blanket recusal of the judge based in part on “favoritism” shown to the defense lawyer who received the email. The judge then compounded his situation with the way he handled a couple of subsequent matters that were stayed as a result of the list of cases for which recusal was being sought. He managed to call the prosecutors who compiled the list “idiots,” and saying that the premise of the whole underlying mess was “a lie from the pit of hell.” Poker players might refer to that kind of lashing out as a “tell” on the part of the accused judge.

Interestingly, the Florida judge wrapped into one proceeding both kinds of judicial violations that have separately been the subject of two of the most recent instances of public judicial discipline in Tennessee.

I wrote many moons ago about an unusual circumstance where the Tennessee Association of Criminal Defense Lawyers as a group had filed an ethics complaint against a Nashville General Sessions Judge for an ex parte email communication to members of the local district attorney’s office about certain rules the judge would have in terms of plea agreements that simply would not be accepted. That judge ended up receiving a public reprimand for her conduct in March 2016, which you can read in full here.

More recently, a Juvenile Court judge in Murfreesboro, Tennessee (a college town not too far from Nashville) received a public reprimand for her conduct in making vituperative remarks directed at parties/attorneys in a hearing involving a motion to transfer. While not rising to quite the same level as the Florida judge’s rhetoric, the Murfreesboro judge did call the folks seeking to transfer a case out of her court as a “sneaky snake,” and as being “conniving.” You can read the public reprimand letter issued to that judge here.

Given that both Tennessee judges received public reprimands just for conduct involving one thing or the other, it seems the Florida circuit judge ought to be somewhat grateful that he got out of his jam involving both ex parte communications and rash invective from the bench without receiving a suspension.

Throwback Thursday is definitely a thing all over the World Wide Web it seems, but maybe Tech Tuesday ought to be a thing? Though, I guess, for lawyers focusing on technology has to be an every day affair.

Like multitudes of others, I wrote a little bit recently about the Panama Papers and the Mossack Fonseca data breach fiasco. Fortune now has an article online about a Wired U.K. story that casts a harsh light on the electronic security measures that the Panamanian firm had in place. Blurbs like these

Mosseck Fonseca’s client portal, according to Wired, runs on a version of Drupal last updated in 2013, and vulnerable to an array of attacks, including one that would allow attackers to execute commands on the site. Another weakness allows access to the site’s back end just by guessing the right web address.

Just as bad is the firm’s webmail portal, which runs Microsoft Outlook Web Access, and hasn’t been updated since 2009. The firm also did not encrypt its emails. As one expert speaking to Wired put it, “They seem to have been caught in a time warp.”

sound very bad when you are talking about a firm that trafficked almost exclusively in “highly sensitive financial information.” I suspect though that there are lots of other lawyers out there that are hopeful that their technology arrangements will never be subjected to even half as much scrutiny.

One lawyer who is in the middle of a highly public examination of their choices in technology is the lawyer at the heart of this story yesterday. The lawyer has been sued by her former clients over a theft from them of $1.9 million resulting from hacking of the lawyer’s email account. The couple had hired the attorney to represent them in the purchase of a nearly $20 million co-op apartment. Luckily, it appears that the clients figured out what was going on even before the lawyer did and were able to recover almost all of the $1.9 million that was to be the down payment but was wired to the fraudsters. The lawyer — and you ought to brace yourself here (though I admittedly know lawyers who still use this service) — was using an AOL email account for her real estate law practice.

The lawsuit contends that AOL accounts are particularly vulnerable to hacking and that the hacking was what let the cybercriminals know when certain transactions were going to take place, but as the article makes clear there were other opportunities for the lawyer to realize something was amiss:

It accuses Doran of forwarding bogus emails from the hackers — who were impersonating the seller of the apartment’s attorney — about payments from the Millards without confirming their authenticity last December. The name of the seller’s attorney was misspelled in the email which should have been a tip off that something was amiss.

Finally, the usually on-point Karen Rubin has a well-done post over at The Law For Lawyers Today about a relatively fortunate Oklahoma lawyer who managed to avoid full reciprocal discipline over his inability to figure out how to e-file in bankruptcy court.

The Oklahoma lawyer was permanently suspended by the Western District of Oklahoma bankruptcy court from ever practicing before it again, but the Oklahoma Supreme Court hit him only with a public censure. Given the current rhetoric surrounding the practice of law and the demands everyone appears to assume lawyers absolutely must satisfy when it comes to using technology, it is pretty startling to read a state supreme court, in that case Oklahoma’s, issue an opinion in a lawyer discipline case that can be read to seem to minimize the obligation to be technologically competent. But, in fairness, unless the Oklahoma Supreme Court was going to be willing to disbar the lawyer in question — which would seem supremely harsh — then any discipline imposed through reciprocal channels was going to be less than that meted out by the federal bankruptcy court and a public censure sounds about right to me.

I have made reference in the past on this blog about the problems that can come from the fact that Tennessee is one of a very few states that still use the “preponderance of the evidence” standard in disciplinary proceedings against lawyers. Fewer than a dozen jurisdictions including Tennessee still use that standard. Around forty U.S. jurisdictions require proof of misconduct by the much higher “clear and convincing evidence” standard in order to discipline a lawyer.

I have long believed that, with the right case, an as-applied constitutional challenge to the standard could be successful in Tennessee. Personally, I would like to see Tennessee as a matter of public policy just come to the determination that joining the overwhelming majority of the states on this issue is simply the right thing to do. The difference in the standard of proof wouldn’t make much difference at all in many cases where conduct is egregious and easily proven. Where the different standard could really make a large amount of difference is upstream in disciplinary investigations well before formal proceedings are even initiated and would decrease the pressure on lawyers to agree to a resolution of their case with the imposition of a reprimand or a censure because of the fear that they could lose a contested case and potentially receive more severe punishment if a hearing panel ends up deciding that it was just slightly more likely that the accuser’s version of events was accurate.

I’ve never thought that a facial constitutional challenge would be a successful endeavor because the problem with the use of the standard is not that it defies due process in every case. Only an as-applied challenge was ever going to have a chance at success. And the right kind of fact pattern would be key.

We have something of a weird little cottage industry of lawyers who have their own track record of problems with past discipline and who have handled their own cases attempting to then trumpet themselves as lawyers for lawyers in disciplinary proceedings. As a result, what I have long worried about is that someone might pursue a constitutional challenge to the standard in the wrong kind of case and end up the first vehicle for the Court to address the issue. The risk of that sort of outcome is that the Court might find itself so strenuously justifying its system that any effort to win the day just on a public policy rationale would be lost. Unfortunately, just such an event occurred earlier this month as a Nashville lawyer represented by a lawyer with her own quite checkered disciplinary history appears to have done just that. And, as a bonus, did it in a fashion that the Court called “rambling and border[ing] on incomprehensible.” You can read the Court’s opinion here.

It’s really a bit mind blowing that any lawyer would think that this particular case was a good one to pursue that constitutional argument. The respondent was looking at a 6-month suspension but only 1 month of it as an active suspension, had previously been privately disciplined twice and publicly censured twice more for conduct similar to the most recent charges and, as even the Court pointed out in a footnote, the evidence of misconduct was more than sufficient to satisfy even the clear and convincing standard. It appears that neither the lawyer whose license was actually at stake, nor his first lawyer were off-the-mark enough to originally think that was an avenue worth exploring. But things changed once an additional lawyer was added to the team.

What is truly frustrating (in addition to why any lawyer would hire the lawyer who handled the defense of the case) is that the rambling, nearly incomprehensible argument did manage to cause the Court to pontificate about how the preponderance of the evidence standard strikes the right balance because of it how it serves to protect the public from lawyer misconduct.

The only silver lining to be found in this dingy, dark grayish cloud is this: although this ruling certainly forecloses any facial challenge to the standard as unconstitutional, it does not mean that a successful as-applied challenge cannot be brought in the right circumstances. It certainly doesn’t make the task any easier though.

Tomorrow, I’ll be doing the first of my four stops on the roadshow across Tennessee, starting at home sweet home, Memphis. If you are a lawyer in Memphis in need of dual credits, it isn’t too late to sign up and attend. And, if you can’t make Memphis, I’ll be doing it again in Nashville on Thursday.

Press releases on public discipline issued by the BPR can be something of an art form and sometimes, but not always, don’t tell the whole story. So setting aside any tea-leaf reading that might otherwise go into this one involving what sounds like a situation in which a lawyer was perhaps unknowingly used by clients to assist with some hinky efforts to shield assets, the reference to RPC 2.2 as being among the rules violated raises a fine opportunity to remind Tennessee lawyers about another trap for the unwary.

Tennessee is one of only two U.S. jurisdictions (Mississippi is the other) that still has such a rule on their books. RPC 2.2 is pattered upon an ABA Model Rule that was quickly scuttled after adoption by the ABA. As such, the existence of RPC 2.2 in Tennessee presents both a blessing and a curse.

If you are aware of it, and understand when it applies, it is a blessing because it makes excruciatingly clear what needs to be in your engagement letter with your various clients, what you need to say about your role, what your duties and obligations are, and when you have to terminate representing any of the clients because the situation has blown up. If you are not aware of its existence, then it’s a curse because, given its very detailed requirements, a lawyer could find themselves incorrectly looking to RPC 1.7 and complying with those provisions to try to obtain informed consent to a joint representation only to learn later that s/he followed the wrong rule altogether.

For the lawyer involved, and the fact that this whole set-up apparently turned out to involve a gratuitous transfer, this might have become a second-level trap as Comment [4] to RPC 2.2 indicates that where what is going on is a gratuitous transfer, RPC 1. 7 and not RPC 2.2 is the relevant rule with which to comply.

But, for everyone other than the lawyer involved, this still presents a decent teachable moment to remind Tennessee lawyers that if you are undertaking to represent multiple parties in an undertaking that involves “provid[ing] impartial legal advice and assistance” to multiple parties who “are engaged in a candid and non-adversarial effort to accomplish a common objective with respect to the formation, conduct, modification, or termination of a consensual legal relations between them,” then your engagement would be as an intermediary and RPC 2.2 is the rule on point. RPC 2.2 thoroughly details how to determine whether you have a conflict that would prevent undertaking the representation at all, what you need to do to go about getting informed consent of the multiple clients involved, and what the rules of the road are for the engagement going forward.

When lawyers think about problematic business transactions with a client, they usually think about things like loans or, perhaps, situations in which a lawyer is joining a client as an investor in a business venture. The ethics rule regarding business transactions with clients, RPC 1.8(a), is broader in its coverage than just those situations and, in fact, broader than many lawyers realize. A particular issue that pops up from time-to-time to cause trouble for lawyers is failure to understand that RPC 1.8(a) applies when you renegotiate a fee agreement with a client. Given the nature of the attorney-client relationship and the broad fiduciary duties attorneys owe their clients, it should be logical that a lawyer faces a heavier than normal burden when trying to turn an existing fee agreement with a client into something more favorable for the lawyer.

The trap for a lawyer who does not realize that RPC 1.8(a) applies to such a change is that, even a change that would still amount to a reasonable fee arrangement in compliance with RPC 1.5, amounts to a violation of the rules unless it meets all of the additional requirements of RPC 1.8(a). (Because the purpose of this rule is to prevent the lawyer from taking advantage of the client, RPC 1.8(a) does not apply when a lawyer is re-doing the terms of a fee agreement to make it more favorable to the client (i.e. marking down or walking away from a bill for example or agreeing to lower their hourly rate)).

Though numbered as three sub-parts, there are actually five additional requirements to be met: (1) there has to be a writing transmitted to the client that discloses the transaction and the terms in a manner reasonably understood by the client; (2) the transaction and terms have to be fair and reasonable to the client; (3) the client has to be advised in writing that it is desirable to seek independent legal counsel for advice on the transaction; (4) the client must be given a reasonable opportunity to seek independent legal counsel; and (5) there has to be a writing, signed by the client, showing the client’s informed consent to the terms and the lawyer’s role (including whether the lawyer was also representing the client in the transaction.

Comment [1] to the rule offers a pretty specific pointer to try to make it harder for a lawyer to be unwary and, thus, prevent this rule from serving as a trap. The next sentence in Comment [1] makes clear that this rule does not apply to standard commercial transactions (e.g. you represent a large bank and you also obtain a home mortgage from that bank) not only because requiring compliance would be impracticable but also because there is no real concern of an imbalance between lawyer and client in such situations.

When there is any real doubt about what the net outcome of a midstream fee change would be, the safe course is to make sure to comply with RPC 1.8(a). Thus, while a lawyer who has been handling a plaintiff’s case on a hourly fee basis may be able to argue that moving the arrangement over to a contingent fee agreement was for the client’s benefit to avoid a burden of continuing to pay fees on a case that might not be successful, it’s a very risky endeavor to proceed without making sure that you tick each of the boxes to comply with RPC 1.8(a).